A BILL to amend and reenact §49-1-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §49-6-3 of said code;
and to amend and reenact §61-8D-3, all relating to conduct and
circumstances of child abuse; creating crime and criminal
penalties for drug and alcohol abuse during pregnancy
resulting in diagnosed harm to infant.

Be it enacted by the Legislature of West Virginia:

That §49-1-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §49-6-3 of said code be amended and
reenacted; and that §61-8D-3 of said code be amended and reenacted,
all to read as follows:

(1) A parent, guardian or custodian who knowingly or
intentionally inflicts, attempts to inflict or knowingly allows
another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home; or

(2) Sexual abuse or sexual exploitation; or

(3) The sale or attempted sale of a child by a parent, guardian
or custodian in violation of section sixteen, article four, chapter
forty-eight of this code; or

(4) Domestic violence as defined in section two hundred two,
article twenty-seven, chapter forty-eight of this code; or

(5) A mother who, during her pregnancy, uses drugs or alcohol
and, as a result, gives birth to an infant who is dependent upon a
controlled substance not the result of medical treatment
administered to the mother or infant or who is diagnosed with fetal
alcohol syndrome or both.

In addition to its broader meaning, physical injury may include
an injury to the child as a result of excessive corporal punishment.

(b) "Abusing parent" means a parent, guardian or other
custodian, regardless of his or her age, whose conduct, as alleged
in the petition charging child abuse or neglect, has been adjudged
by the court to constitute child abuse or neglect.

(c) "Battered parent" means a parent, guardian or other
custodian who has been judicially determined not to have condoned
the abuse or neglect and has not been able to stop the abuse or
neglect of the child or children due to being the victim of domestic
violence as defined by section two hundred two, article twenty-seven, chapter forty-eight of this code, which domestic violence was
perpetrated by the person or persons determined to have abused or
neglected the child or children.

(d) "Child abuse and neglect" or "child abuse or neglect" means
physical injury, mental or emotional injury, sexual abuse, sexual
exploitation, sale or attempted sale, alcohol or drug use during
pregnancy not administered for medical treatment of the mother or
infant resulting in diagnosed harm to an infant at birth or a blood,
urine or meconium test of the child at birth showing the presence
of any amount of a controlled substance or a metabolite of a
controlled substance or negligent treatment or maltreatment of a
child by a parent, guardian or custodian who is responsible for the
child's welfare, under circumstances which harm or threaten the
health and welfare of the child.

(e) "Child abuse and neglect services" means social services
which are directed toward:

(1) Protecting and promoting the welfare of children who are
abused or neglected;

(3) Preventing the unnecessary removal of children from their
families by identifying family problems and assisting families in
resolving problems which could lead to a removal of children and a
breakup of the family;

(4) In cases where children have been removed from their
families, providing services to the children and the families so as
to reunify such children with their families or some portion
thereof;

(5) Placing children in suitable adoptive homes when reunifying
the children with their families, or some portion thereof, is not
possible or appropriate; and

(6) Assuring the adequate care of children who have been placed
in the custody of the department or third parties.

(f) “Child advocacy center” means a community-based
organization that is a member in good standing with the West
Virginia Child Abuse Network, Inc., and is working to implement the
following program components:

(1) Child-appropriate/child-friendly facility: A child
advocacy center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for
clients.

(3) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practices.

(4) Cultural competency and diversity: The CAC promotes
policies, practices and procedures that are culturally competent.
Cultural competency is defined as the capacity to function in more
than one culture, requiring the ability to appreciate, understand
and interact with members of diverse populations within the local
community.

(5) Forensic interviews: Forensic interviews are conducted in
a manner which is of a neutral, fact finding nature and coordinated
to avoid duplicative interviewing.

(6) Medical evaluation: Specialized medical evaluation and
treatment are to be made available to CAC clients as part of the
team response either at the CAC or through coordination and referral
with other specialized medical providers.

(7) Therapeutic intervention: Specialized mental health
services are to be made available as part of the team response
either at the CAC or through coordination and referral with other
appropriate treatment providers.

(8) Victim support/advocacy: Victim support and advocacy are
to be made available as part of the team response, either at the CAC
or through coordination with other providers, throughout the
investigation and subsequent legal proceedings.

(9) Case review: Team discussion and information sharing
regarding the investigation, case status and services needed by the
child and family are to occur on a routine basis.

(10) Case tracking: CACs must develop and implement a system
for monitoring case progress and tracking case outcomes for team
components. Provided, That A child advocacy center may establish
a safe exchange location for children and families who have a
parenting agreement or an order providing for visitation or custody
of the children that require a safe exchange location.

(g) "Imminent danger to the physical well-being of the child"
means an emergency situation in which the welfare or the life of the
child is threatened. Such emergency situation exists when there is
reasonable cause to believe that any child in the home is or has
been sexually abused or sexually exploited or reasonable cause to
believe that the following conditions threaten the health or life
of any child in the home:

(1) Nonaccidental trauma inflicted by a parent, guardian,
custodian, sibling or a babysitter or other caretaker;

(2) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as battered child
syndrome;

(3) Nutritional deprivation;

(4) Abandonment by the parent, guardian or custodian;

(5) Inadequate treatment of serious illness or disease;

(6) Substantial emotional injury inflicted by a parent,
guardian or custodian; or

(7) Sale or attempted sale of the child by the parent, guardian
or custodian;

(8) A blood, urine or meconium test of the child at birth
showing the presence of a controlled substance or a metabolite of
a controlled substance unless the presence of the substance or the
metabolite is the result of medical treatment administered to the
mother or the infant; or

(9) A medical diagnosis of fetal alcohol syndrome at birth.

(h) "Legal guardianship" means the permanent relationship
between a child and caretaker, established by order of the circuit
court having jurisdiction over the child, pursuant to the provisions
of this chapter and chapter forty-eight of this code.

(i) "Multidisciplinary team" means a group of professionals and
paraprofessionals representing a variety of disciplines who interact
and coordinate their efforts to identify, diagnose and treat
specific cases of child abuse and neglect. Multidisciplinary teams
may include, but are not limited to, medical, educational, child
care and law-enforcement personnel, social workers, psychologists
and psychiatrists. Their goal is to pool their respective skills
in order to formulate accurate diagnoses and to provide
comprehensive coordinated treatment with continuity and follow-up
for both parents and children. "Community team" means a
multidisciplinary group which addresses the general problem of child
abuse and neglect in a given community and may consist of several
multidisciplinary teams with different functions.

(j) (1) "Neglected child" means a child:

(A) Whose physical or mental health is harmed or threatened by
a present refusal, failure or inability of the child's parent,
guardian or custodian to supply the child with necessary food,
clothing, shelter, supervision, medical care or education when such
refusal, failure or inability is not due primarily to a lack of
financial means on the part of the parent, guardian or custodian;
or

(B) Who is presently without necessary food, clothing, shelter,
medical care, education or supervision because of the disappearance
or absence of the child's parent or custodian.

(2) "Neglected child" does not mean a child whose education is

conducted within the provisions of section one, article eight,
chapter eighteen of this code.

(k) "Parenting skills" means a parent's competencies in
providing physical care, protection, supervision and psychological
support appropriate to a child's age and state of development.

(l) "Sexual abuse" means:

(A) As to a child who is less than sixteen years of age, any
of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another person
to engage in, with such child, notwithstanding the fact that the
child may have willingly participated in such conduct or the fact
that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct:

(i) Sexual intercourse;

(ii) Sexual intrusion; or

(iii) Sexual contact.

(B) As to a child who is sixteen years of age or older, any of
the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in or knowingly procure another person
to engage in, with such child, notwithstanding the fact that the
child may have consented to such conduct or the fact that the child
may have suffered no apparent physical injury or mental or emotional
injury as a result of such conduct:

(i) Sexual intercourse;

(ii) Sexual intrusion; or

(iii) Sexual contact.

(C) Any conduct whereby a parent, guardian or custodian
displays his or her sex organs to a child, or procures another
person to display his or her sex organs to a child, for the purpose
of gratifying the sexual desire of the parent, guardian or
custodian, of the person making such display, or of the child, or
for the purpose of affronting or alarming the child.

(m) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.

(n) "Sexual exploitation" means an act whereby:

(1) A parent, custodian or guardian, whether for financial gain
or not, persuades, induces, entices or coerces a child to engage in
sexually explicit conduct as that term is defined in section one,
article eight-c, chapter sixty-one of this code;

(2) A parent, guardian or custodian persuades, induces, entices
or coerces a child to display his or her sex organs for the sexual
gratification of the parent, guardian, custodian or a third person,
or to display his or her sex organs under circumstances in which the
parent, guardian or custodian knows such display is likely to be
observed by others who would be affronted or alarmed.

(o) "Sexual intercourse" means sexual intercourse as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.

(p) "Sexual intrusion" means sexual intrusion as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.

(q) "Parental rights" means any and all rights and duties
regarding a parent to a minor child, including, but not limited to,
custodial rights and visitationalvisitation rights and rights to
participate in the decisions affecting a minor child.

(r) "Placement" means any temporary or permanent placement of
a child who is in the custody of the state in any foster home, group
home or other facility or residence.

(s) "Serious physical abuse" means bodily injury which creates
a substantial risk of death, which causes serious or prolonged
disfigurement, prolonged impairment of health or prolonged loss or
impairment of the function of any bodily organ.

(t) "Siblings" means children who have at least one biological
parent in common or who have been legally adopted by the same
parents or parent.

(u) "Time-limited reunification services" means individual,
group and family counseling, inpatient, residential or outpatient
substance abuse treatment services, mental health services,
assistance to address domestic violence, services designed to
provide temporary child care and therapeutic services for families,
including crisis nurseries and transportation to or from any such
services, provided during fifteen of the most recent twenty-two
months a child has been in foster care, as determined by the earlier
date of the first judicial finding that the child is subjected to
abuse or neglect, or the date which is sixty days after the child
is removed from home.

(a) Upon the filing of a petition, the court may order that the
child alleged to be an abused or neglected child be delivered for
not more than ten days into the custody of the state department or
a responsible person found by the court to be a fit and proper
person for the temporary care of the child pending a preliminary
hearing, if it finds that: (1) There exists imminent danger to the
physical well-being of the child; and (2) there are no reasonably
available alternatives to removal of the child, including, but not
limited to, the provision of medical, psychiatric, psychological or
homemaking services in the child's present custody: Provided, That
Where the alleged abusing person, if known, is a member of a
household, the court shall not allow placement pursuant to this
section of the child or children in said home unless the alleged
abusing person is or has been precluded from visiting or residing
in said home by judicial order. In a case where there is more than
one child in the home, or in the temporary care, custody or control
of the alleged offending parent, the petition shall so state, and
notwithstanding the fact that the allegations of abuse or neglect
may pertain to less than all of such children, each child in the
home for whom relief is sought shall be made a party to the
proceeding. Even though the acts of abuse or neglect alleged in the
petition were not directed against a specific child who is named in
the petition, the court shall order the removal of such child,
pending final disposition, if it finds that there exists imminent
danger to the physical well-being of the child and a lack of
reasonable available alternatives to removal. The initial order
directing such custody shall contain an order appointing counsel and
scheduling the preliminary hearing, and upon its service, shall
require the immediate transfer of custody of such child or children
to the department or a responsible relative which may include any
parent, guardian, or other custodian. The court order shall state:
(1) That continuation in the home is contrary to the best interests
of the child and why; and (2) whether or not the department made
reasonable efforts to preserve the family and prevent the placement
or that the emergency situation made such efforts unreasonable or
impossible. The order may also direct any party or the department
to initiate or become involved in services to facilitate
reunification of the family.

(b) Whether or not the court orders immediate transfer of
custody as provided in subsection (a) of this section, if the facts
alleged in the petition demonstrate to the court that there exists
imminent danger to the child, the court may schedule a preliminary
hearing giving the respondents at least five days' actual notice.
If the court finds at the preliminary hearing that there are no
alternatives less drastic than removal of the child and that a
hearing on the petition cannot be scheduled in the interim period,
the court may order that the child be delivered into the temporary
custody of the department or a responsible person or agency found
by the court to be a fit and proper person for the temporary care
of the child for a period not exceeding sixty days. Provided, That
The court order shall state: (1) That continuation in the home is
contrary to the best interests of the child and set forth the
reasons therefor; (2) whether or not the department made reasonable
efforts to preserve the family and to prevent the child's removal
from his or her home; (3) whether or not the department made
reasonable efforts to preserve the family and to prevent the
placement or that the emergency situation made such efforts
unreasonable or impossible; and (4) what efforts should be made by
the department, if any, to facilitate the child's return home:
Provided, however, That If the court grants an improvement period
as provided in section twelve of this article, the sixty-day limit
upon temporary custody is waived.

(c) If a child or children shall, in the presence of a child
protective service worker, be in an emergency situation which
constitutes an imminent danger to the physical well-being of the
child or children, as that phrase is defined in section three,
article one of this chapter, and if such worker has probable cause
to believe that the child or children will suffer additional child
abuse or neglect or will be removed from the county before a
petition can be filed and temporary custody can be ordered, the
worker may, prior to the filing of a petition, take the child or
children into his or her custody without a court order. Provided,That After taking custody of such child or children prior to the
filing of a petition, the worker shall forthwith appear before a
circuit judge or a juvenile referee of the county wherein custody
was taken, or if no such judge or referee be available, before a
circuit judge or a juvenile referee of an adjoining county, and
shall immediately apply for an order ratifying the emergency custody
of the child pending the filing of a petition. The circuit court
of every county in the state shall appoint at least one of the
magistrates of the county to act as a juvenile referee who shall
serve at the will and pleasure of the appointing court and who shall
perform the functions prescribed for such position by the provisions
of this subsection. The parents, guardians or custodians of the
child or children may be present at the time and place of
application for an order ratifying custody, and if at the time the
child or children are taken into custody by the worker, the worker
knows which judge or referee is to receive the application, the
worker shall so inform the parents, guardians or custodians. The
application for emergency custody may be on forms prescribed by the
Supreme Court of Appeals or prepared by the prosecuting attorney or
the applicant and shall set forth facts from which it may be
determined that the probable cause described above in this
subsection exists. Upon such sworn testimony or other evidence as
the judge or referee deems sufficient, the judge or referee may
order the emergency taking by the worker to be ratified. If
appropriate under the circumstances, the order may include
authorization for an examination as provided for in subsection (b),
section four of this article. If a referee issues such an order,
the referee shall by telephonic communication have such order orally
confirmed by a circuit judge of the circuit or an adjoining circuit
who shall on the next judicial day enter an order of confirmation.
If the emergency taking is ratified by the judge or referee,
emergency custody of the child or children shall be vested in the
department until the expiration of the next two judicial days, at
which time any such child taken into emergency custody shall be
returned to the custody of his or her parent or guardian or
custodian unless a petition has been filed and custody of the child
has been transferred under the provisions of section three of this
article.

(d) For purposes of the court's consideration of temporary
custody pursuant to the provisions of subsection (a) or (b) of this
section, the department is not required to make reasonable efforts
to preserve the family if the court determines:

(1) The parent has subjected the child, another child of the
parent or any other child residing in the same household or under
the temporary or permanent custody of the parent to aggravated
circumstances which include, but are not limited to, abandonment,
torture, chronic abuse and sexual abuse;

(2) The parent has:

(A) Committed murder of the child’s other parent, another child
of the parent or any other child residing in the same household or
under the temporary or permanent custody of the parent;

(B) Committed voluntary manslaughter of the child’s other
parent, another child of the parent or any other child residing in
the same household or under the temporary or permanent custody of
the parent;

(C) Attempted or conspired to commit such a murder or voluntary
manslaughter or been an accessory before or after the fact to either
such crime; or

(D) Committed unlawful or malicious wounding that results in
serious bodily injury to the child, the child’s other parent, to
another child of the parent or any other child residing in the same
household or under the temporary or permanent custody of the parent;
or

(E) Used alcohol or drugs not administered for medical
treatment during pregnancy and, as a result, the infant is born with
the diagnosis of fetal alcohol syndrome or with the presence of any
amount of a controlled substance or a metabolite of a controlled
substance in his or her blood, urine or meconium and such presence
is not the result of medical treatment administered to the mother.

(3) The parental rights of the parent to another child have
been terminated involuntarily.

(a) If any parent, guardian or custodian shall abuse a child
and by such abuse cause such child bodily injury as such term is
defined in section one, article eight-b of this chapter, then such
parent, guardian or custodian shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than $100 nor more than
$1,000 and committed to the custody of the Division of Corrections
for not less than one nor more than five years, or in the discretion
of the court, be confined in jail for not more than one year.

(b) If any parent, guardian or custodian shall abuse a child
and by such abuse cause said child serious bodily injury as such
term is defined in section one, article eight-b of this chapter,
then such parent, guardian or custodian shall be guilty of a felony
and, upon conviction thereof, shall be fined not less than $1,000
nor more than $5,000 and committed to the custody of the Division
of Corrections not less than two nor more than ten years.

(c) Any person who abuses a child and by the abuse creates a
substantial risk of serious bodily injury or of death to the child
is guilty of a felony and, upon conviction thereof, shall be fined
not more than $3,000 and confined to the custody of the Division of
Corrections for not less than one nor more than five years.

(d) Any mother who, during her pregnancy, abuses alcohol or
uses drugs not administered for medical treatment and, as a result,
gives birth to an infant diagnosed with fetal alcohol syndrome or
with the presence of any amount of a controlled substance or a
metabolite of a controlled substance in his or her blood, urine or
meconium and such presence is not the result of medical treatment
administered to the mother or the infant, is guilty of a felony and,
upon conviction thereof, shall be fined not less than $100 nor more
than $1,000 and committed to the custody of the Division of
Corrections for not less than one nor more than five years, or in
the discretion of the court, be confined in jail for not more than
one year.

NOTE: The purpose of this bill is to expressly state drug and
alcohol use during pregnancy by a mother that results in diagnosed
harm to a newborn is actionable in civil child abuse proceedings and
criminal child abuse proceedings, with penalty.

Strike-throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would
be added.